Citation Nr: 9909349
Decision Date: 04/02/99 Archive Date: 04/16/99
DOCKET NO. 96-26 594 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased evaluation for left maxillary
sinusitis, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Richard A. Cohn, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1968 to
November 1971 and from December 1980 to February 1981.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1996 rating decision of the
Department of Veterans' Affairs (VA) Regional Office in
Cleveland, Ohio (RO) which continued a 10 percent evaluation
for left maxillary sinusitis. The veteran appealed the
decision to the Board which remanded the case to the RO in
May 1997 for further development. After completion of the
requested development to the extent possible and continued
denial of the veteran's claim the RO returned the case to the
Board for further appellate review.
FINDINGS OF FACT
1. The record includes all evidence necessary for the
equitable disposition of this appeal.
2. The veteran's service-connected left maxillary sinusitis
is manifested by minimal mucous discharge, mild congestion,
slight thickening of the mucus membrane and slight
tenderness.
3. The veteran's service sinusitis is productive of no more
than one or two incapacitating episodes per year requiring
prolonged (lasting four to six weeks) antibiotic treatment,
or; three to six non-incapacitating episodes per year
characterized by headaches, pain, and purulent discharge or
crusting, or; moderate symptoms with discharge or crusting or
scabbing and infrequent headaches.
CONCLUSION OF LAW
The criteria for assignment of an evaluation in excess of 10
percent for left maxillary sinusitis have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14,
4.97, Diagnostic Codes 6513, 6514 (1996 & 1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A claimant for benefits under a law administered by the VA
has the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). Because
an allegation that a service-connected disability has become
more severe is sufficient to establish a well-grounded claim
for an increased rating, see Caffrey v. Brown, 6 Vet. App.
377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632
(1992), the Board finds that the veteran's claim for an
increased rating based upon an alleged increase in the
severity of her service-connected disability is well
grounded. Once a claimant presents a well-grounded claim,
the VA has a duty to assist the claimant in developing facts
which are pertinent to the claim. Id. The Board finds that
all relevant facts have been properly developed and that all
evidence necessary for equitable resolution of the issue on
appeal is of record.
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities
(Rating Schedule) to the veteran's current symptomatology.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (1998). If
two evaluations are potentially applicable the higher
evaluation will be assigned if the disability appears to
approximate more nearly the criteria required for that
rating. 38 C.F.R. § 4.7.
Revised schedular rating criteria for respiratory
disabilities have been in effect since October 7, 1996.
Where a law or regulation changes after a claim has been
filed or reopened, but before the conclusion of the
administrative or judicial appeal process, the applicable
provision is the one most favorable to the veteran. Karnas
v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Therefore, the
Board considers the veteran's claim here under both the
current and former provisions.
Under the current criteria, 38 C.F.R. § 4.97, Diagnostic Code
(DC) 6513, chronic maxillary sinusitis is evaluated under the
general rating formula for sinusitis set forth following DC
6514, for the 50, 30 and 10 percent ratings, respectively, as
follows:
Following radical surgery with chronic
osteomyelitis, or; near constant
sinusitis characterized by headaches,
pain and tenderness of affected sinus,
and purulent discharge or crusting after
repeated surgeries [50 percent].
Three or more incapacitating episodes per
year of sinusitis requiring prolonged
(lasting four to six weeks) antibiotic
treatment, or; more than six non-
incapacitating episodes per year of
sinusitis characterized by headaches,
pain, and purulent discharge or crusting
[30 percent].
One or two incapacitating episodes per
year of sinusitis requiring prolonged
(lasting four to six weeks) antibiotic
treatment, or; three to six non-
incapacitating episodes per year of
sinusitis characterized by headaches,
pain, and purulent discharge or crusting
[10 percent].
A note following this section defines "an incapacitating
episode of sinusitis" as one that requires bed rest and
treatment by a physician.
Under the former criteria, 38 C.F.R. § 4.97, DC 6513, chronic
maxillary sinusitis is evaluated under the criteria for
chronic sphenoid sinusitis found in DC 6514, for the 50, 30
and 10 percent ratings, respectively, as follows:
Post-operative, following radical
operation, with chronic osteomyelitis
requiring repeated curettage, or severe
symptoms after repeated operations [50
percent].
Severe, with frequently incapacitating
recurrences, severe and frequent
headaches, purulent discharge or crusting
reflecting purulence [30 percent].
Moderate, with discharge or crusting or
scabbing and infrequent headaches [10
percent].
The Board recognizes that a disability may require reratings
in accordance with changes in a veteran's condition. It is
therefore essential to consider a disability in the context
of the entire recorded history when determining the level of
current impairment. 38 C.F.R. § 4.1. Nevertheless, the
current level of disability is of primary concern. Francisco
v. Brown, 7 Vet. App. 55, 58 (1994).
The RO first granted service connection for left maxillary
sinusitis in September 1982. The RO initially assigned a
noncompensable (0 percent) evaluation. By a rating decision
in January 1991 the RO assigned a 10 percent evaluation. By
a rating decision in March 1996 the RO continued the 10
percent evaluation pursuant to 38 C.F.R. § 4.97, DC 6513.
That rating has been in effect since then.
Upon a VA examination in November 1990, the examiner noted
considerable edema of the mucosa of both nasal cavities with
partial obliteration of the nasal cavity. He indicated that
there was minimal mucous discharge and no post-nasal
discharge or congestion of the oral pharynx. The auditory
canals were clean and dry, bilaterally. The tympanic
membrane was intact, bilaterally, with no perforation. There
was no intraorbital swelling and no tenderness over the left
maxillary sinus. The diagnosis was recurrent left maxillary
sinusitis. X-rays disclosed slight thickening of the left
maxillary mucous membrane. The remainder of the sinus and
all remaining sinuses were clear.
On a VA examination in November 1995, the veteran gave a
history of episodic nasal discharge since 1980 associated
with nasal congestion with periodic exacerbations. However,
at the time of the examination, the veteran reportedly had no
significant complaint relating to her chronic sinus problems.
On examination, the examiner noted a supple, node-free neck.
The tympanic membranes were clear, bilaterally. The throat
was described as clear. There was no frontal or maxillary
sinus tenderness and the nostrils were clear, bilaterally.
The veteran had normal nasal mucosa, and no erythema or
discharge. The diagnosis was allergic rhinitis/sinusitis.
X-rays disclosed normal sinus development and aeration
without thickened mucosa, fluid level or bone destruction.
VA treatment records from March 1996 disclose that the
veteran sought treatment for sinus drainage. On examination,
there was no sinus tenderness and examination of the
oropharynx revealed no erythema. The tympanic membranes were
described as clear. However, examination of the lungs
revealed wheezing and a diagnosis of bronchitis was made;
antibiotics were prescribed. VA treatment records from April
1996 and December 1996 disclose that the veteran sought
treatment for nosebleeds. These records do not note a link
between the bronchitis and nosebleeds, and the veteran's
service-connected left maxillary sinusitis.
On a VA examination in December 1997, the veteran gave a
history of recurrent nosebleeds as well as recurrent sinus
infections. She reported that the nosebleeds had been much
less bothersome recently with the last one occurring in May
1997. She reportedly was unaware of any environmental
factors that she was allergic to other than foods. She
denied formal allergy testing. She reportedly worked at the
post office and had a fair degree of dust exposure. She
indicated that at present she tended to have clear, thick
drainage with episodes rather than purulent drainage as she
had previously. She reported that she did not experience any
particular facial pain or discomfort on one side or the
other. She reported that the episodes responded to
antibiotics and she had a week or two at the most where she
felt there was a problem with functioning.
Objective findings on examination in December 1997 included
normal voice quality, and normal and symmetrical facial
appearance without swelling. The examiner indicated that the
veteran had normal external ears and tympanic membranes.
Tuning fork test was normal as well as cranial nerves II
through XII. Transillumination testing of the sinuses
revealed +3/4 maxillary and frontal sinus testing which was
reported to be quite normal; there was no asymmetry, which
was indicated to be an important finding. The oral pharynx
and oral cavity were described as benign. There was no
inflammation or discharge from the laryngopharynx and no
adenoid hypertrophy of the nasopharynx. The nasal passages
anteriorly revealed mild nasal congestion. The passages were
decongested and examined again whereupon no polyps or
purulent drainage was revealed. The diagnosis was history of
recurring epistaxis and sinusitis with no evidence of current
symptoms.
At her August 1996 RO hearing and in written statements in
April 1996 and in November 1998, the veteran described
symptomatology she associated with her service-connected left
maxillary sinusitis. In her oral testimony and in her April
1996 statement she asserted that large amounts of mucus
drained from her sinuses each morning, and that she had
frequent and profuse nosebleeds. She also described
crustiness inside her nostrils and headaches every two or
three weeks that responded well to over-the-counter
medication. In her November 1998 written statement the
veteran asserted that her sinuses continued to bother her and
that she continued to have some headaches although her daily
nosebleeds had abated.
In consideration of the foregoing, the Board finds that the
medical evidence does not support an evaluation of the
veteran's service-connected left maxillary sinusitis in
excess of the 10 percent currently assigned. To the
contrary, the medical evidence clearly shows that the
veteran's sinus disorder is primarily manifested by no more
than mild congestion, slight thickening of the mucus membrane
and slight tenderness. There is no medical evidence of more
than moderate symptoms with discharge or crusting or scabbing
and infrequent headaches. Further, the evidence does not
indicate more than one or two incapacitating episodes per
year of sinusitis requiring prolonged (lasting four to six
weeks) antibiotic treatment, or; three to six non-
incapacitating episodes per year of sinusitis characterized
by headaches, pain, and purulent discharge or crusting.
Neither is there medical evidence linking the veteran's once-
frequent nosebleeds with her left maxillary sinusitis.
Moreover, the Board observes that at the time of her most
recent examination, there was no current evidence of problems
with the veteran's sinusitis. The veteran has reported that
her sinusitis has worsened and that she has increased
symptomatology. While noting the veteran's subjective
complaints, the Board must emphasize that the objective
medical evidence considered in connection with her appeal is
not supportive of her claim to the extent that a higher
evaluation under the Rating Schedule is in order. Therefore,
the Board finds the veteran's symptomatology, described
above, is contemplated by the current 10 percent disability
rating and is insufficient to support an evaluation in excess
of 10 percent under either the former or revised schedular
criteria. Accordingly, an increased evaluation in this case
is not warranted.
After consideration of all of the evidence, the Board finds
that the preponderance of the evidence is against the claim
for an increased evaluation for the veteran's service-
connected left maxillary sinusitis. As the Board has
determined that the preponderance of the evidence is against
the claim, the benefit of the doubt doctrine is inapplicable.
38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1
Vet. App. 49 (1991).
ORDER
Entitlement to an increased evaluation for left maxillary
sinusitis is denied.
S. L. KENNEDY
Member, Board of Veterans' Appeals
Department of Veterans Affairs